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EFF's formal analysis of final version of the Exon legislation. part 2 of 2
From: Dave Farber <farber () central cis upenn edu>
Date: Sat, 17 Jun 1995 22:18:00 +0900
fundamentally different medium, those FCC-enforced procedures are not a "least restrictive means" -- in fact, they are potentially among the most restrictive. The language that penalizes anyone who "makes or makes available" indecent content to a minor would require an access provider like Netcom to cease carrying the entire alt.sex.* hierarchy, the great majority of which is First-Amendment-protected speech. Suppose Netcom tried to avail itself of legal immunity for transmitting indecency by, say, limiting subscriber access to the "indecent" Usenet newsgroups to Netcom subscribers age 18 or over. Since Netcom, like all Internet access providers, is also a Usenet distribution node, *the company would still be liable*, since, by passing "indecent" Usenet traffic through, it would "make available" that indecent content to minors elsewhere on the Net who aren't Netcom customers. Note: this analysis is not meant to imply that *no* government regulation of computer communications would meet the "least restrictive means." As a practical matter, this medium is *uniquely suited* to measures that simultaneously protect sensitive users and children from offensive content and allow the full range of constitutionally protected speech on the Net. Since both the computers that users employ to read the Net and those that providers use to administer the Net are highly intelligent and programmable devices, it is relatively easy to design tools that individuals can use to filter offensive content and that parents can use to screen content for their children. The government's promotion of the development and implementation of such tools, if done in a way consistent with First Amendment guarantees, would likely qualify as a "least restrictive means." Furthermore, there are constitutional reasons for favoring policies that empower individuals and families to make their own content choices. In Wisconsin v. Yoder (1972), the Supreme Court acknowledged that the right of parents to determine what is appropriate for their children is constitutionally protected. Filtering tools could be the fundamental means of preserving family values while exploring global computer networks. ADULTS SHOULD NOT BE LIMITED TO ONLY WHAT IS APPROPRIATE FOR CHILDREN. The effect of the CDA's provisions regarding indecent content and minors would be both dramatic and disastrous. If enacted, the CDA would effectively turn all the public areas of the Net -- and all of the distributed global conferencing system known as Usenet -- into the equivalent of the Children's Room at the public library. Traditionally, every large public library has a Children's Room -- a confined area of the library with content deemed safe for children. Outside of the Children's Room, the rest of the library is geared toward, and available to, adults. The Exon language would turn the Net as a whole into the *inverse* of the public library -- the public spaces, including Usenet, would be regulated as safe for children, while adults would have to talk about adult content (detailed discussions of sexual content in the work of James Joyce, explanations of Shakespeare's bawdy puns, or descriptions of proper techniques for safe sex, to name some examples) in confined, nonpublic (and probably non-global) subforums or "rooms." There would be no more wide-ranging debates with the full set of potential international participants about the merits of THE SATANIC VERSES -- after all, that book has indecent content. We'd have to be content with the narrower range of participants we could lure to an "adult" room on CompuServe or AOL -- a small group of paying subscribers rather than a large population of discussants from commercial and noncommercial systems alike. The CDA would diminish and perhaps destroy the intellectual diversity and vibrancy of the Net. CONCLUSION The CDA represents the kind of "top-down," government-centered attempt to regulate the content that demonstrates a lack of understanding of the nature of this new medium. Legislation like the CDA -- particular when based on regulatory approaches for wholly different media -- are certain to create more practical and constitutional problems than they solve. It is especially ironic that the Exon amendment, which would chill the development of online services and communities and "dumb down" the content of the Net's public spaces to a grade-school level, has been attached to a bill deregulating communications infrastructure. This deregulation has been presented as a boost to the pace of development of the very technology to support these services and communities. EFF believes that parents, not Congress or the FCC, have the primary right and responsibility to determine what is appropriate for their children to see. Furthermore, it is clearly wrong for Congress to attempt to make outlaws out of adults for engaging in public speech that may not be suitable for minors. As Supreme Court Justice Felix Frankfurter ruled in Butler v. Michigan (1957): "The State insists that, by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely this is to burn the house to roast the pig. The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children." And a legislative approach that was bad for the adult population of Michigan nearly 40 years ago is surely just as bad for the adult population of the Net today. For More Information Contact: Electronic Frontier Foundation Mike Godwin Shari Steele (voice) +1.202.861.7700 ****************************************************************** COMMUNICATIONS DECENCY AMENDMENT -- FULL TEXT OF FINAL LANGUAGE PASSED BY THE U.S. SENATE ON JUNE 14, 1995 The text of the Communications Decency Amendment, sponsored by Sen. Jim Exon (D-Nebraska). This language was passed by the US Senate on June 14th. ------------------------------------------------------- This strikes all of Title IV of S. 652 and replaces it with the following: Sec.___ OBSCENE OR HARASSING USE OF TELECOMMUNICATIONS FACILITIES UNDER THE COMMUNICATIONS ACT OF 1934 Section 223 (47 U.S.C. 223) is amended -- (1) by striking subsection (a) and inserting in lieu thereof: ``(a) Whoever-- ``(1) in the District of Columbia or in interstate or foreign communications ``(A) by means of telecommunications device knowingly-- ``(i) makes, creates, or solicits, and ``(ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person; ``(B) makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communication; ``(C) makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or ``(D) makes repeated telephone calls or repeatedly initiates communication with a telecommunications device, during which conversation or communication ensues, solely to harass any person at the called number or who receives the communication; or ``(2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined not more than $100,000 or imprisoned not more than two years, or both.''; and (2) by adding at the end the following new subsections: ``(d) Whoever-- ``(1) knowingly within the United States or in foreign communications with the United States by means of telecommunications device makes or makes available any obscene communication in any form including any comment, request, suggestion, proposal, image, regardless of whether the maker of such communication placed the call or initiated the communications; or ``(2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by subsection (d)(1) with the intent that it be used for such activity; shall be fined not more than $100,000 or imprisoned not more than two years or both. ``(e) Whoever-- ``(1) knowingly within the United States or in foreign communications with the United States by means of telecommunications device makes or makes available any indecent comment, request, suggestion, proposal, image to any person under 18 years of age regardless of whether the maker of such communication placed the call or initiated the communication; or ``(2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined not more than $100,000 or imprisoned not more than two years or both. ``(f) Defenses to the subsections (a), (d), and (e), restrictions on access, judicial remedies respecting restrictions for persons providing information services and access to information services-- (1) No person shall be held to have violated subsections (a), (d), or (e) solely for providing access or connection to or from a facility, system, or network over which that person has no control, including related capabilities which are incidental to providing access or connection. This subsection shall not be applicatable to an individual controlled by, or a conspirator with, an entity actively involved in the creation, editing or knowing distribution of communications which violate this section. (2) No employer shall be held liable under this section for the actions of an employee or agent unless the employee's or agent's conduct is within the scope of his employment or agency and the employer has knowledge of, authorizes, or ratifies the employee's or agent's conduct. (3) It is a defense to prosecution under subsection (a), (d)(2), or (e) that a person has taken reasonable, effective and appropriate actions in good faith to restrict or prevent the transmission of or access to a communication specified in such subsections, or complied with procedures as the Commission may prescribe in furtherance of this section. Until such regulations become effective, it is a defense to prosecution that the person has complied with the procedures prescribed by regulation pursuant to subsection (b)(3). Nothing in this subsection shall be construed to treat enhanced information services as common carriage. (4) No cause of action may be brought in any court or any administrative agency against any person on account of any action which in not in violation of any law punishable by criminal penalty, which activity the person has taken in good faith to implement a defense authorized under this section or otherwise to restrict or prevent the transmission of, or access to, a communication specified in this section. (g) no state or local government may impose any liability for commercial activities or actions by commercial entities in connection with an activity or action which constitutes a violation described in subsection (a)(2), (d)(2), or (e)(2) that is inconsistent with the treatment of those activities or actions under this section provided, however, that nothin herein shall preclude any State or local government from enacting and enforcing complementary oversight, liability, and regulatory systems, procedures, and requirements so long as such systems, procedures, and requirements govern only intrastate services and do not result in the imposition of inconsistent rights, duties or obligations on the provision of interstate services. Nothing in this subsection shall preclude any State or local government from governing conduct not covered by this section. (h) Nothing in subsection (a), (d), (e), or (f) or in the defenses to prosecution under (a), (d), or (e) shall be construed to affect or limit the application or enforcement of any other Federal law. (i) The use of the term 'telecommunications device' in this section shall not impose new obligations on (one-way) broadcast radio or (one-way) broadcast television operators licensed by the Commission or (one-way) cable services registered with the Federal Communications Commission and covered by obscenity and indecency provisions elsewhere in this Act. (j) Within two years from the date of enactment and every two years thereafter, the Commission shall report on the effectiveness of this section. Sec. ____ OBSCENE PROGRAMMING ON CABLE TELEVISION. Section 639 (47 U.S.C> 559) is amended by striking "10,000" and inserting "$100,000" Sec. ___ BROADCASTING OBSCENE LANGUAGE ON THE RADIO. Section 1466 of Title 18, United States Code, is amended by striking out "$10,00" and inserting "$100,000". Sec. ___ SEPARABILITY "(a) If any provision of this Title, including amendments to this Title or the application thereof to any person or circumstance is held invalid, the remainder of this Title and the application of such provision to other persons or circumstances shall not be affected thereby."
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- EFF's formal analysis of final version of the Exon legislation. part 2 of 2 Dave Farber (Jun 17)